Government phone searches: Return of the 'general warrant'

Our democracy’s end may have come years ago, and we’re just now finding out about it.

How long has AT&T been providing U.S. law enforcement agencies with unfettered access to the phone records of customers and non-customers alike? As the Electronic Frontier Foundation’s David Maass and Aaron Mackey report in a November 29, 2016, article, we only found out about AT&T’s Hemisphere program in 2013 because of an FBI agent’s inadvertent leak to a reporter of a presentation describing the “massive phone records dragnet.”

The Hemisphere database AT&T maintains on behalf of federal, state, and local law enforcement contains “trillions of domestic and international phone call records dating back to 1987,” according to the EFF. Four million new call records are added to the system each day, including calls made by non-AT&T customers. The extreme secrecy of the operation is maintained by a process called “parallel construction,” which allows police and other government officials to hide their use of Hemisphere data by obtaining traditional subpoenas after they’ve gleaned the information they need from Hemisphere. The EFF has another name for this: “evidence laundering.”

The EFF claims that AT&T employees staff police “Fusion Centers” to facilitate law enforcement’s access to call detail records. These records include the numbers called and received, as well as the time, date, duration, and (sometimes) location of the parties on the call. This raises Fourth Amendment issues because the records allow police to learn about people’s social connections and physical movements without having to seek a warrant from a magistrate.

The program also raises First Amendment questions because the call records reveal people’s associations with activist and other organizations, according to the EFF.

A return of the ‘general warrants’ that the Founding Fathers rebelled against

Imagine a single warrant allowing the FBI to hack more than 8,000 computers in 120 countries. That’s what happened when the FBI took over a child-pornography site on the dark web, as Motherboard’s Joseph Cox reported in a January 5, 2016, article. In a November 22, 2016, follow-up article, Cox quotes a federal public defender as saying there has never been “a warrant so utterly sweeping” in our country’s history.

American Civil Liberties Union principal technologist Christopher Soghoian called the ability of a single magistrate judge to authorize the FBI to hack 8,000 computers in 120 countries “truly terrifying.” Under the existing requirements of Rule 41 of the Federal Rules of Civil Procedure, the magistrate judge who issued the warrant in the Eastern District of Virginia lacked authority to allow searches outside her district. However, changes to Rule 41 scheduled to take effect on December 1, 2016, would authorize these types of catch-all warrants.

The EFF’s David Snyder compares the National Security Agency’s illegal domestic spying program to the use of “writs of assistance” by British monarchs in the 18th century to spy on the private communications of American colonists (pdf). These writs allowed the agents of King George II and George III to conduct general searches of anyone, anywhere, anytime, even in the absence of any reasonable suspicion of a crime. According to Snyder, these writs were James Madison’s motivation when he wrote the Fourth Amendment.

What the NSA, the FBI, and other government agencies are doing is tantamount to a “general writ”: they require no showing of probable cause, and no judicial oversight; they are also indefinite and unlimited in scope, giving law enforcement carte blanche to search as they please. Snyder describes two cases arising from events in 1760 that brought the overreaching nature of the writs into full focus. The first is the Paxton Case, which involved reissuing of the writs issued by George II after his death, which invalidated the existing writs.

At the time, the British were strictly enforcing an import tax on molasses, and custom officials relied on writs of assistance to search for smuggled molasses. James Otis represented a group of Boston merchants in opposing the writs. John Adams witnessed the trial as a 26-year-old, newly minted attorney. He later wrote that Otis called the writs the worst example of “arbitrary power” in all of English law, annihilating “freedom in one’s house.”

Adams wrote that this was “the first scene of opposition to the arbitrary power of Great Britain,” and was where “the child Independence was born.”

The second case is the Wilkes Case, which relates to a newspaper published in Britain whose offices were ransacked under the pretext of a “search.” In the Wilkes Case, five houses were searched and 49 people arrested (nearly all of whom were later found innocent) under a single writ. Snyder writes that the case was closely followed and debated in the colonies and in Britain. According to Snyder, President Barack Obama’s authorization of the NSA spying program violates the Fourth Amendment privacy protections of millions of Americans.

Democracy on life support: ‘Warning signs flashing red’

There are a growing number of threats to democratic governments around the world. According to research conducted by Freedom House, the number of governments worldwide that could be classified as “free” has declined since 2005 after steadily increasing from the 1970s to the early 2000s. Amanda Taub writes about the study in a November 29, 2016, article in the New York Times.

The “democratic consolidation” theory states that democratic institutions develop and thrive when they are based on a healthy civil society and economic health. Harvard researcher Yascha Mounk and political scientist Roberto Stefan of the University of Melbourne in Australia have devised a three-part test to gauge the health of a democracy.

Public support: How important do citizens believe it is to maintain a democracy?

Openness to a non-democratic government, such as military rule.

Growing support for “anti-system parties and movements” that challenge the legitimacy of the current government.

Mounk and Stefan cite growing anti-democracy movements in Poland and elsewhere in Europe as indications of “fever” becoming a “flu.” Their research found that only 19 percent of millennials in the U.S. would consider a military takeover of government as illegitimate, while 46 percent of older people in the U.S. would refuse to recognize a military takeover as legitimate. In Europe, the percentages against non-democracies are higher for both younger and older people.

It's surprising that so many people are okay with a non-democratic form of government. Could we be taking our freedom for granted at the exact moment we should be fighting hardest to protect it?